27 Feb 2017, 04 mins ago

The Supreme Court’s recent decision in Mirza and others v Secretary of State for the Home Department [2016] UKSC 63 makes clear that s.3C of the Immigration Act 1971 does not automatically extend a person’s leave to remain. Where leave expires in between the defective application and the fresh one an applicant will simply have run out of time for correction. 

Background to case

Section 3C of the Immigration Act 1971 extends a person’s leave to remain pending determination of an application to vary the period of leave, so long as the application is made before the original leave has expired. 

In the case of Mirza and others v Secretary of State for the Home Department [2016] UKSC 63 the Supreme Court considered how section 3C applies where an application is made in time, but for some reason is procedurally defective. 

The challenge was brought by three applicants all of whom had had their application for Leave to Remain refused on the basis that their applications were flawed. 

Mr Iqbal, was granted entry clearance in January 2007 to come to the UK as a student, later extended to 30 April 2011. On 19 April 2011 he applied for further leave to remain as a student, although unaware that the fee had recently increased, he paid the old, lower fee. His application was rejected as invalid for that reason, and his leave expired. 

Similarly, Mr Mirza entered the UK under a student visa which was valid until 31 March 2009. His application to extend leave was rejected for non-payment of the fee when the Secretary of State was unable to take the £295 application fee from his bank.

In Ms Ehsan’s case, she had entry clearance until 28 December 2011. She applied for further leave on 23 December 2011 and was contacted by the Secretary of State, requesting that she make an appointment to provide certain biometric information. She was told by letter dated 26 March 2012 that her application was returned as invalid because of her failure to make and attend an appointment for providing biometric information. A new application made on 3 April 2012 subsequently failed.

All three applied for judicial review of the Secretary of State’s decisions, and following refusal of permission to apply for judicial review in the High Court/Upper Tribunal, permission to appeal was granted by the Court of Appeal. The Court of Appeal dismissed their joined appeals on the basis that section 3C did not extend to an application which was not validly made in accordance with the rules.

Supreme Court Judgment 

The Supreme Court unanimously dismissed the appeals and upheld the Court of Appeal’s judgment. 

Lord Carnwath, who gave the ruling judgement however echoed the concern of the Court of Appeal as to the need for greater rationalisation and simplification of the immigration rules and regulations, which are a tangled web and easy to misinterpret, even for those who are vigilant. Moreover, he indicated that not only is there need for simplification, but there is also need for greater flexibility on the part of the Secretary of State to exercise some discretion in favour of those who are currently penalised for simple errors.